New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1887-11-04
FOR 4 BROADWAY ELEYATgD Road
A COMMISSION OF APPRAISAL CHOSEN.

JUSTICE DoNoHUE STATES HIS REASONS FOR
GRANTING TINE APPLICATION OF HE METRO.
PoLIrAN TRANSIT COMPANY.
Justice Donohue In the Supreme Court yesterday
granted the application of the Metropolitan Transit
Company for commission to condemn the right OF way
In Broadway whore 1t ia proposed to build an elevated
road, and appointed the commission George W.
Quintarl, Robert L. Cutting and Thomas b. Musgrave
In his decision Justice Donohue says that the charter
under which the company made its application was
peculiar one and contained provision which had never
before appeared in charter Of similar nature This
In effect that the company should his condemn thc
right of way and pay the city treasury the appraised
value before taking steps to build the
road. The application originally made In 1879. and
has been adjourned time time until the present
II opposed by the city. on the nrst nearing ater
certain other companies had interviewed, the specai
Term held that the application was only TO cohieh the
right bud and not the interference with the rights OF
any other company, and refused TO let any other COM
pany Intervene.
On an appeal from this decision the ,neral Term held
that the petition broad enough to include the rights
of the other companies but allowed the applicants To
amend their petition to limit IL to the simple right
of way from the city and affirmed the order to that ex
tent.
ANSWERING OBJECTIONS MADE BY THE CITY.
On the second bearing before the Special Term the city
contended that the city for the purpose Of
keeping the streets open and the right Of way could not
be condemned II also claimed that the building OF the
road would create such distractions as to render IL
nuisance The held both these points that the
Legislature under the decisions OF the Court of
Appeals had the right lcgaze such structures and as
no such difficulties had arisen from the roads or similar
nature which been built heretofore In the Streets
it could b, presumed that the road OF the Metropo
itan Company could not he built rs we'll.
The city also claimed that the road coud not be built
in answer to which the court held hardly lay in
the mouth Of the city to make such ctlm as similar
roads had been built point raised by the city
was that the company did not intend 10 build the ROAD
On this point the held that the road could not
be built begun until the present step was nm
lhe it would he time enough to consider that question
when the damages had been assessed and paid on the
present proceedings. Next tho city cIimed that the
Manhattan Elevated Railroad, the Broadway surface
road and the Arcade road had rights which the applica
ton affected, and they should be made parties to the
suit This the court answered by saying that those COM
panes were able to protect themselves and 1t was not
for the city TO protect their rights.
THE CHATTER NOT FORFEITED.
The city also the point that the eh after of the
Metropolitan Company had been forfeited By nonuse,
and that the adiournments which mad taken place at
various times during the proceedings had been taken at
request OF the applicant THIS the court disposed OF
by deciding that it did no. lay in the mouth OF the city,
after having assened to the APPOINTMENTS to deny their
propricty. and that during all the time which had
elapsed tue company was W iaO'
proceedings were pending Also that uncr the case OF
the Kings County Elevated Railroad there h'd Deeh ho
forfeiture -,
The question OF the constitutioDalty OF the Act OF
Ia- making certain changes In the company Vas also
raised ana the held that under variety or cases
cited n change had been made coming within the pr0h
billion or the Constitution In answer 70 the question
raised by the city In regr 10 the routes ~ was hed
that under the law the engineers appointed had the right
To lay ont the routes sought 10 DE condemned. linen
the city claimed that the company did not intend 10
build some OF the lines originally proposed ana Jlscc
Donohue Leld that on this proceeding what waT 10 DC
built the entirety not before the court IL was
also claimed on behalf OF the city that application or
effort. had been made 10 effect All agreement upon
price for the right OF way. On this the court hed mat
the general rule OF law was tnat when the rgt Ol c
party TO the relief sought utterly denied II would
be useless 70 attempt agree price. aud the ap
cant WAS relieved making such effort In addition
10 that the effort that had been made was sufficient 10
show that Agreement could be reached
Tue opiuiOn closes with granting the application.